FEB in For the Service PAWL C. LiAVLS

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1 ARBITRATION AWARD In the Matter of UNITED STATES POSTAL SERVICE I I WIN-5F -D and I W7N -5F-D NATIONAL ASSOCIATION OF LETTER CARRIERS APPEARANCES FEB in For the Service PAWL C. LiAVLS NATIONAL BUSINESS AGENT Lerene Wiley Don Pusch Sonny Salazar Bob Church Bob Brackins Juan Luna Ron Gaudiosi For the Union L A Sant Michael Crowley William B Cameron Ken Bielek T Spear ARBITRATOR EDWIN R RENDER By the terms of the contract between the UNITED STATES POSTAL SERVICE, hereinafter referred to as "the Service", and the NATIONAL ASSOCIATION OF LETTER CARRIERS, hereinafter referred to as "the Union", there is provided a grievance procedure including arbitration. Accordingly the parties selected Edwin R Render, Seattle Washington as impartial arbitrator. A hearing was held in Phoenix Arizona on January 4, Equal opportunity was given the parties for the preparation and presentation of evidence, examination, and cross-examination of witnesses, and oral argument.

2 W7N-5F-D W7N- 5F-D THE ISSUE The issue in this case is whether the grievant was properly placed in an emergency off duty status. on June 20, 1990, pursuant to article 16.7 of the contract and whether the grievant was suspended for just cause for 30 days on August 13, CONTRACT PROVISIONS Article 16, section 1 of the contract provides : In is the administration of this Article, a basic principle shall be that discipline should be corrective in nature, rather than punitive. No employee may be disciplined or discharged except for just cause such as, but not limited to, insubordination, pilferage, intoxication (drugs or alcohol), incompetence, failure to perform work as requested, violation of the terms of this Agreement, or failure to observe safety rules and regulations. Any such discipline or discharge shall be subject to the grievance-arbitration procedure provided for in this Agreement, which could result in reinstatement and restitution, including back pay. Article 16, section 7 of the contract provides : Any employee may be immediately placed on an off-duty status (without pay) by the Employer, but remain on the rolls where the allegation involves intoxication (use of drugs or alcohol), pilferage, or failure to observe safety rules and regulations, or in cases where retaining the employee on duty may result in damage to U.S. Postal Service property, loss of mail or funds, or where the employee may be injurious to self or others. The employee shall remain on the rolls (non-pay status) until disposition of the case has been had. If it is proposed to suspend such an employee for more than thirty (30) days or discharge the employee, the emergency action taken under this Section may be made the subject of a separate grievance. 2

3 W7N-5F-D W7N-5F-D THE FACTS The grievant is a letter carrier. Some time prior to February 1988 he was assigned a long life vehicle. This dispute concerns allegations that the grievant knowingly violated vehicular safety regulations by repeatedly and intentionally putting the gear selector in his service vehicle into the park position before coming to a complete stop thereby causing damage to the parking pawl. The Service also charged the grievant with willfully damaging the parking brake set screw which locks the brake adjustment into place. During the period between February 6, 1988 and December 29, 1989, the Service performed general parking brake maintenance on the grievant's vehicle 24 times ; 14 of these repairs involved replacement of the parking brake set screw. After the grievant complained on December 30, 1989 that his vehicle would not remain in park after engagement of the parking brake, the Service discovered that the parking pawl was broken. The pawl and gear shift lever were replaced and thereafter the manager of vehicle programs, Bob Brackins, consulted postal headquarters about the pawl's safety history nationwide. Upon learning that there had been no similar pawl failures reported elsewhere in the nation, Mr. Brackins determined that the grievant's driving must be the cause of the problem. Accordingly, Mr. Brackins directed Bob Church, vehicle operations analyst, to monitor the grievant's driving.

4 On May 1, 1990, Mr. Church surreptitiously followed the grievant and noted that his vehicle would often rock back and forth before coming to a complete stop. Mr. Church concluded that the grievant was placing his gear selector into park before fully coming to a halt. Mr. Church immediately talked to the grievant and told. him to stop completely before shifting into park. One week later, the grievant's immediate supervisor,. Ron Gaudiosi, also voiced these concerns. On May 30, 1990 the parking pawl and a set screw were again replaced in the grievant's vehicle. The Service decided at this time that the grievant would be the only Service employee allowed to drive the vehicle. On June 15, 1990 Bob Brackins saw the grievant driving on his route and observed his vehicle come to an abrupt halt and rocked back and forth. After learning of this incident, Ron Gaudiosi, placed the grievant in an emergency off duty status on June 20, 1990 believing that the grievant's continued conduct was a threat to Postal Service property. On June 25, 1990 a fact finding procedure was conducted with supervisor Juan Luna, superintendent Ron Gaudiosi, union steward Barboza, and the grievant present. Subsequently, on July 11, 1990 the grievant was issued a notice which proposed his removal from Postal Service based on the allegations that he abused Postal Service property. Gary L. Penn, the director of city operations, Phoenix division, reviewed the removal and found that the grievant willfully abused his Postal Service vehicle during the course of his duties as a letter carrier. However, in deference to the grievant's exemplary disciplinary record prior to the conduct at issue, Mr. Penn 4

5 unilaterally modified the proposed removal to a 30 calendar day suspension. Upon the grievant's return to duty on September 23, 1990, he was to undergo remedial driver training. Thereafter, the grievant requested arbitration on both his emergency off duty placement and the decision of Mr. Penn. POSITIONS OF THE PARTIES Position of the Service First, the Service argues that its placement of the grievant on emergency off duty status without pay was proper under article 16.7 of the agreement which allows such action when the Service believes that retaining an employee on active service may result in damage to U. S. Postal Service property. To sustain its action under article 16.7, the Postal Service notes that it must only present evidence that established it had a reasonable basis to believe that retention of the employee on active duty would result in damage to or destruction of Postal Service property, not that level of evidence which would be required to sustain discharge a discharge. A reasonable basis existed in reports to supervisor Gaudiosi that the grievant had been observed willfully abusing his Postal Service vehicle and that this abuse resulted in damage which necessitated mechanical repairs. Since there was no compelling reason to doubt these reports, the Postal Service argues that reliance on them and removing the grievant to off duty status was entirely reasonable. 5

6 Next, the Postal Service contends that the 30 day suspension was for just cause. The Postal Service alleges that the grievant violated section of the E&LRM and section of the Postal Operations Manual which positively charge employees with the proper care of fleet vehicles issued to them. The grievant was aware of correct driving procedures both through extensive training and face to face discussions with Messrs Gaudiosi and Church. That the grievant knowingly violated these instructions are, according to the Postal Service, conclusively established by several facts. The Postal Service argues that the extraordinary maintenance history of the grievant's vehicle circumstantially proves that he drove abusively. Twenty-four general parking brake repairs over a 28 month period is far and above what the Postal Service considers normal in light of their experience with the average wear and tear of vehicles of this type. The Postal Service notes that the parking pawl failure is particularly convincing evidence that the grievant willfully abused his vehicle. The Postal Service contends that its expert testimony proves that only two events will cause a parking pawl to break. Either the vehicle must be struck by another vehicle while the gear selector is in park, or the gear selector is placed in park while the vehicle is moving. In either instance, the cause of the break is the great amount of stress on the pawl caused by the vehicle's movement. Since the grievant does not contend that he was struck by another vehicle while his vehicle was in park, the Postal Service says that the 6

7 only rational conclusion is that the grievant was shifting the gear selector into park before coming to a complete halt. Further, the observations of Messrs Brackins and Church that they saw the grievant's vehicle rock back and forth before stopping is supportive evidence of this theory. Additionally, the Postal Service notes that no other vehicle in the nation has experienced a similar problem with the parking bi generally or the parking pawl specifically. If the problem were to _. in the mechanical workings of the grievant ' s vehicle, and not with grievant himself, the Postal Service believes that it would surely 1 - arisen at other locations. Finally, a Postal Service argues that that the Union's attac!r the grievant's removal from active duty status to off duty state :- procedural grounds is without merit. According to the Service, the grievant was clearly given notice of the supporting the Service's reasons for placing him in off duty stc... the letter notifying him of the action. Further, the grieva provided all hearings required by the national agr Accordingly, for the reasons outlined above, the Postal Servic ; that the grievances be denied. Position of the Union The Union first attacks the grievant' s removal from active to emergency off duty status on procedural grounds. The 7

8 contends that the grievant was not given a specific reason for being placed off duty. The Union states that NALC vice president lien Bieler asked supervisor Ron Gaudiosi on June 20, 1990 for specific reasons underlying the grievant's placement in off duty status and was told by Mr. Gaudiosi that he did not know of the specific reasons. The Union contends that this lack of notice denies the grievant of due process and is violative of article 16 of the national agreement. Secondly, the Union argues that there was no just cause for the removal to off duty status since the grievant did nothing wrong. The Union also challenges the grievant's 30 day suspension on the latter grounds. The Union argues that the Postal Service is actually charging the grievant with sabotage and therefore must prove the grievant's misconduct beyond a reasonable doubt. Since the Postal Service's evidence is circumstantial, the Union concludes that the Postal Service failed to meet this type of burden of proof and the grievance must therefore be sustained. The Union further argues that even if the grievant was driving the vehicle in a careless manner and thereby presented a threat to the continued maintenance of the Postal truck, the Postal Service still could have taken other corrective action short of placing the grievant off duty without pay. According to the Union, other jobs were available at the grievant's station which he could have formed without driving a vehicle and the Postal Service should have opted for this less drastic measure. 8

9 W7N-5F-D W7N -5F-D The Union argues that the "covert" observations made by Messrs Church and Brackins are inconclusive proof that the grievant shifted his vehicle into park before coming to a complete stop. First, neither Mr. Church nor Mr. Brackins actually witnessed the gear lever being placed into park before the vehicle halted. Next, the Union contends that Mr. Church's statement said " appears to put the transmission into park" and Mr. Brackins' statement that the rocking motion of the vehicle was " characteristic of placing the transmission in park" (emphasis added) are indicative of management's uncertainty of what actually transpired on the dates these observations were made. The Union's explanation of Mr. Church's observation is that the dirt on the road on Dahlia Street caused the brakes on the grievant's vehicle to lock which caused the rocking motion before it came to a stop. The Union denies that Mr. Church counseled the grievant immediately after the incident on Dahlia Street. Rather, the Union contends that the grievant was not given an opportunity to give his side of the story until one week later which is contrary to established procedure. The Union believes that the grievant's infraction must not have been as serious as the Postal Service alleges if the Postal Service was willing to wait a week before taking corrective action. Mr. Brackins, according to the Union, also failed to counsel properly the grievant at the scene of the alleged accident on June 16, Overall, the Union feels that the Postal Service failed to keep the grievant and the Union properly informed about their actions underlying the removal and improperly delayed removing the grievant 9

10 W7N-5F- D W7N-5F-D until July 11, 1990 even though the Postal Service's investigation was completed on June 29. The Union argues that the physical evidence of the grievant's infraction is not credible. First, the dates cited by management in its notice of removal are inconsistent with the dates appearing on the repair records. Next, the Union complains that it did not have the opportunity to inspect the broken set screws and pawls in order to verify the Postal Service's allegations. Finally, the Union states that the grievant was not the only user of the Postal vehicle in question and that therefore the grievant cannot be held solely accountable for its malfunction. The Union is not certain why the vehicle is constantly in the shop for repairs but denies that the company has met its burden of proof sufficiently to sustain its charges that the grievant is the responsible party. Because of the above arguments, the Union asks that both grievances be sustained, that the 30 day suspension and the removal to emergency off duty status be rescinded, and that the grievant be made whole for all lost wages and benefits plus interest at the highest billing rate. DISCUSSION Based on the provisions of the contract, the testimony given at the hearing, and the arguments of the representatives of the parties, 10

11 the Arbitrator has concluded that the Postal Service erred in placing the grievant on emergency off duty status on June 20, 1990 and that the grievance addressed to this Postal Service action is therefore sustained. The Arbitrator further finds that the Postal Service had just cause to suspend the grievant for 30 days as a result of his misuse of a Postal Service vehicle. The grievance protesting that action must be denied. Under article 16 section 7 of the contract the Postal Service may place an employee on emergency off duty status when retention of the employee on active duty "may result in damage to U.S. Postal Service property." This provision has been exercised in part when the employee is generally careless or circumstances indicate that the employee is undertaken to willfully and maliciously destroy government property. When general carelessness or malicious intent is involved, is it quite reasonable to assume that the offending employee will pose a risk regardless of the type of job to which he is assigned. However, these circumstances are not present in this case. As discussed below, the Postal Service has proved that the grievant drove his Service vehicle carelessly and contrary to Postal Service regulations. However, this misconduct is very specific in nature as evidenced by the fact that the damage approximately caused by the grievant to the Postal vehicle. No credible evidence was presented which establishes that the grievant was otherwise careless or reckless. or that he performed his other duties in a manner which was likely to damage other Postal Service property. This, combined with the fact 11

12 that the grievant had a very favorable 10 year work history indicates to the Arbitrator that the Postal Service could have placed the grievant in a non driving position where his proven proficiency could have been utilized and his suspected deficiencies neutralized pending a full and fair investigation of his alleged misconduct. The Arbitrator believes the Postal Service proved that the grievant willfully shifted the gear shift lever in his Postal Service vehicle into park before coming to a complete halt, contrary to management's direct warnings, and that this conduct caused damage to the parking pawl on two occasions. The Union failed to meet the testimony of Mr Church that he observed the vehicle rock back and forth prior to each stop on May 1, Though the Union disputes that Mr. Church counseled the grievant about this conduct immediately after the incidents, it concedes that Mr. Gaudiosi discussed the issue with the grievant one week later. Mr. Brackins' observations of June 15 corroborate those of Mr. Church' and the Arbitrator can only conclude that the grievant chose to disregard the are cautionary instructions given by Mr. Gaudiosi on May 8. The nature of the damage to the vehicle is particularly strong circumstantial evidence that the grievant's conduct was the sole cause of the broken pawls. The Arbitrator finds it rather incredible that a reliable part of the long life vehicle such as the parking pawl would break in such a short period of time unless, as the Postal Service contends, the grievant was prematurely shifting the gear shift lever 12

13 W7N-5F- D W7N-5F-D into park. The absence of any evidence that the grievant's truck was hit while parked by another vehicle is a strong indication that the damage occurred because of the grievant's improper driving. The fact that no other Postal vehicles in the country were experiencing similar problems dispels the possibility that there was an inherent defect in the parking pawls. The Arbitrator doubts that this vehicle was the only "lemon" in the country. Also, there was no evidence that other Postal Service employees drove the grievant's vehicle during the key period at issue, and therefore, the blame cannot be placed on third parties. Finally, the Union's contention that the proceedings leading up to the grievant's suspension were procedurally defective is unsubstantiated by the evidence. In conclusion, the Arbitrator finds that the Postal Service improperly placed the grievant on emergency off duty status on June 20, 1990 but properly suspended the grievant for 30 days for willful abuse of Postal Service property. AWARD The grievance addressed to the emergency placement off duty is sustained and the grievance addressed to the grievant's 30 day suspension is denied. 31 January 1991 EDWIN R RENDER Arbitrator 13